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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 24983
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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I have been charged with domestic battery. Wife and I had an

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I have been charged with domestic battery. Wife and I had an argument. She hit me and I shook her by the neck for no more than 5 seconds and left the house. Did not hurt her at all, no marks, bruises, voice problems. No damage at all. I've never touched a woman until that incident. I was doctor ordered off my antidepressent medication for 2 weeks to start another and was just irritable. My wife didn't press charges, the officer did. I have a lawyer but want more input. He's going to try and get it dropped by the prosecutor. What are my chances of being cleared in your opinion? And could I be found not guilty if goes to court and still be assigned anger management, etc?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 5 years ago.
Hello Jacustomer,

Unfortunately, and it's generally too late once the ball has been set in motion, the police just don't have independent discretion when they come to the scene of a domestic incident. No matter what they privately feel about what should happen, no matter whether the husband or wife want to get charges pressed, the police must make an arrest. And once the police have made the arrest and turned the matter over to the prosecutor, though your wife remains the complainant, as the alleged victim of the crime, it is just not her case any more. If your wife does not wish this case to go forward she should go to the prosecutor's office and speak to the domestic violence assistant assigned to prosecute your case, and she should tell that prosecutor that she is not interested in cooperating in your prosecution and that she would like the charges dropped.

The prosecutor will almost certainly tell your wife that it's too late for that and that once a domestic violence matter gets set in motion, the state can choose to go forward with the case whether the original complainant wants to go forward any more or not. That's absolutely true. The state can choose to continue on in your prosecution with or without your wife's cooperation.

While it's true that the state can do this, however, they are usually not able to win their case without the cooperation of the complainant. Here's where your lawyer can help. Once the prosecutor turns your wife down and your lawyer confirms that she wants the whole case dropped, that the prosecutor won't let her drop, and that she could use help to get it dropped, he will deal with the prosecutor, as it appears he has already told you he would do.

Not always but generally, when the complainant and the defense lawyer double team a prosecutor to drop charges, something favorable can be worked out for the defense. Exactly what can be worked out will depend on the facts of the case, which here, do not appear serious, as well as the particular prosecutor and how vested an interest he has in vigorously prosecuting this case. Many times, the prosecutor will dismiss, not quickly, but once he is sure that the complainant is in no real danger and is not being forced to drop. Other times, the case can be bargained down and a defendant is given a non jail offer that may even allow him to come out without a criminal record, but which would usually involve anger management classes.
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